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Possession Claims post 21 September 2020

23rd September 2020

Possession Claims post 21 September 2020

How will possession claims be dealt with under the CPR PD55C once the stay under CPR 55.29 expires on 21 September 2020?

Rule 55.29 extended the government’s stay of possession proceedings during the Covid-19 pandemic until 20 September 2020. It stayed all proceedings and enforcement by writ or warrant but did not affect actions against trespassers, interim possession actions, applications for case management directions that are agreed by all parties and injunctions (r. 55.29(2)).

Practice Direction 55C comes into force from 20 September 2020 until (as things stand) 28 March 2021 (‘the Interim Period’) and makes provisions for resuming possession proceedings following expiry of the stay imposed by rule 55.29.

The way in which claims will be dealt with under PD55C depends on whether they are a “stayed claim”, a “new claim”, a claim brought on or before 19 September or a “new claim” under Section II of Part 55. A stayed claim is one which was brought on or before 19 September 2020 and was therefore affected by the stay. A new claim is a claim brought on or after 20 September 2020 (so from 21 September). The term ‘brought’ is not defined in the practice direction but it seems widely accepted that the only sensible interpretation is that brought means ‘issued’.

The relevant sections of the practice direction as they apply to claims in different categories are set out below.

All claims

Previously, as per r. 55.5, the court would fix a hearing date when it issues the claim form and the standard period between issue and the first hearing would be eight weeks. This requirement has been removed and the court simply ‘may’ fix a hearing date when issuing or do it later and there is no indication of how long one can expect the first hearing to be from the date of listing.

Stayed claims
  • No stayed claim will be listed, relisted or heard unless and until a party files a reactivation notice stating what they wish to happen.
  • Any trial date that was set down prior to 27 March 2020 will be vacated unless the parties comply with the above requirements no later than 42 days before the scheduled hearing date.
  • If no reactivation notice is filed and served by 29 January 2021, the claim will be automatically stayed.
  • The court must give 21 days notice of any hearing listed in response to a reactivation noticed.
  • There is no need to file a reactivation notice for a claim which was brought on or after 3rd August 2020 (even though cases brought between 3rd August and 19th September are caught by the stay in r. 55.29)
Claims issued on or after 21 September 2020

Where a claim is issued on or after 21 September 2020, regardless of whether it is a stayed or new claim, the Claimant must:

  • Where the Pre-Action Protocol for Possession Claims by Social Landlords is applicable, bring two copies of a notice confirming that that protocol has been complied with and how;
  • That notice must also state what knowledge the Claimant has as to the impact of the Coronavirus on the Defendant; and
  • That notice must be served on the Defendant not less than 14 days before the hearing.
New claims under section II of Part 55

In any claim under Section II of Part 55, file with the claim form for service with it a notice setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependents.

 

Is there a standard form for and is there a fee payable for filing a reactivation notice?

There is no standard form for a reactivation notice. It must be in writing and contain the information set out below but beyond that there is no guidance for practitioners.

There is no suggestion that a fee will be payable for filing reactivation notices. One might note that the filing of a reactivation notice is akin to filling a document with the court rather than making a standard application. That being said, in the event that no reactivation notice is filed for a stayed claim by 29 January 2021 and the claim is automatically stayed under PD55C and it seems that a proper CPR compliant application to lift the stay with the associated formalities and fees will be required. PD55C is clear that such an application is not to be treated as an application for relief from sanction.

What information must be contained within a reactivation notice?

A reactivation notice must state whether the filing party wishes for the case to be listed, relisted, heard or referred to a judge under r. 55.15 (referral to a judge when a defence is received). It must also set out, in respect of any claim other than an appeal, what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependents.

Where a claim is based on rent arrears, a reactivation notice must be accompanied by an up to date rent account for the previous two years.

Will the courts give priority to certain types of possession claim, such as where there is anti-social behaviour, when a reactivation notice is filed?

 While clients and their advisors alike have found many frustrations in the blanket approach to possession cases, it appears that the one size fits all is set to continue. There is no suggestion in the practice direction of any particular type of case being given preference for the purpose of relisting and I expect we will see different court listing offices taking different approaches. If your case is particularly pressing, all that one can do is to write to the court office explaining the urgency and hope that has some influence. However, it is unwise to do this if your situation is one which the majority of people find themselves in – i.e. landlord with rent arrears and has had to wait longer for a hearing because of the stay on proceedings.

This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.

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Sally Wollaston
Sally Wollaston
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